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                                 BRB No. 98-0981



CHARLES DRIVER                          )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
SAUNDERS ENGINE                         )    DATE ISSUED:   03/17/1999    
      COMPANY, INCORPORATED     )
                                        )
     and                                )
                                        )
UNITED STATES FIDELITY                  )
& GUARANTY COMPANY                      )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order-Denying Benefits of Ainsworth H. Brown, 
     Administrative Law Judge, United States Department of Labor.

     Mary Beth Mantiply (Mantiply & Associates), Mobile, Alabama, for
     claimant.

     David A. Hamby, Jr. and Jene W. Owens, Jr. (Brooks and Hamby, P.C.),
     Mobile, Alabama, for employer/carrier.
     
     Before: HALL, Chief Administrative Appeals Judge, BROWN, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant  appeals the Decision and Order-Denying Benefits (97-LHC-0001) of
Administrative Law Judge Ainsworth H. Brown rendered on a claim filed pursuant to
the provisions of the Longshore and Harbor Workers' Compensation Act, as amended,
33 U.S.C. §901 et seq. (the Act).  We must affirm the findings of fact
and conclusions of law of the administrative law judge if they are rational,
supported by substantial evidence, and in accordance with law. O'Keeffe v.
Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C.
§921(b)(3).

     Claimant injured his back during the course of his employment as a diesel
mechanic on November 12, 1985.  He also sustained work-related aggravations of his
back condition in 1986, 1988, and 1989, but continued to work in this job. 
Employer voluntarily provided medical benefits and paid sick leave when claimant
lost work due to his back condition.  In October 1994, claimant's treating
physician, Dr. Saiter, advised claimant that his back condition prohibited his
continued employment as a diesel mechanic.  Employer then voluntarily  hired
claimant as a service writer in the truck division of the company and paid claimant
the wages he earned as diesel mechanic in 1993.  On June 5, 1995, Dr. Saiter
prescribed an exercise program at Pro-Health.  Employer's insurance carrier refused
to authorize payment for the treatment and claimant filed a claim for benefits
under the Act on August 28, 1995.

     In his Decision and |Order, the administrative law judge found that the claim
was timely filed, see 33 U.S.C. §913, that claimant sustained work-related injuries, and that he is unable to return to his usual employment as a
diesel mechanic.  He also found that employer offered suitable alternate employment
as a service writer and that claimant did not sustain a loss of wage-earning
capacity.  Based on the diagnosis of Dr. Saiter, the administrative law judge
further found that claimant's back impairment became permanent on October 5, 1995. 
Finally, the administrative law judge denied the claim for past and future medical
expenses.

     On appeal, claimant contends the administrative law judge erred in finding
that he did not sustain a loss of wage-earning capacity when his back condition
caused a change in job duties from diesel mechanic to service writer.  Claimant
also asserts that the administrative law judge erred in denying his claim for
treatment at Pro-Health as prescribed by Dr. Saiter.  Employer responds, urging
affirmance.

     Claimant initially challenges the administrative law judge's finding that his
actual post-injury wages establish his post-injury wage-earning capacity. 
Specifically, claimant argues that his actual post-injury wages fail to account for
his reduced access to the job market due to his back impairment, employer's
benevolence in providing him suitable alternate employment as a service writer, and
the loss of overtime, a company car and raises given diesel mechanics, which he
contends are no longer available to him due to his work injuries.  Claimant also
argues that his loss of wage-earning capacity should be determined by comparing his
actual wages in 1996 as a service writer of $33,922, with the average annual wage
employer paid diesel mechanics in 1996 of $50,558. See CX 10.

     Under Section 8(c)(21) of the Act, 33 U.S.C. §908(c)(21), an award for
permanent partial disability is based on the difference between claimant's pre-injury weekly wage and his post-injury wage-earning capacity.  Section 8(h) of the
Act provides that claimant's wage-earning capacity shall be his actual post-injury
earnings if these earnings fairly and reasonably represent his wage-earning
capacity; however, if such earnings do not represent claimant's wage-earning
capacity, the administrative law judge must calculate a dollar amount which
reasonably represents claimant's wage-earning capacity.  33 U.S.C. §908(h). 
The objective of the inquiry concerning claimant's wage-earning capacity is to 
determine the post-injury wage to be paid claimant under normal employment
conditions as injured. See Long v. Director, OWCP, 767 F.2d 1578, 17 BRBS
149 (CRT)(9th Cir. 1985).  Among the factors to be considered in determining
whether claimant's post-injury wages fairly and reasonably represent his post-injury wage-earning capacity are claimant's physical condition, age, education,
industrial history, the beneficence of a sympathetic employer, claimant's earning
power on the open market and any other reasonable variable that could form a
factual basis for the decision.  See Abbott v. Louisiana Ins. Guaranty
Ass'n, 27 BRBS 192 (1993), aff'd, 40 F.3d 122, 29 BRBS 22 (CRT)(5th
Cir. 1994); Devillier v. National Steel & Shipbuilding Co., 10 BRBS 649
(1979).  Additionally, in calculating claimant's post-injury wage-earning capacity,
the administrative law judge must adjust post-injury wage levels to the levels paid
pre-injury in order to neutralize the effects of inflation. See Richardson v.
General Dynamics Corp., 23 BRBS 327 (1990); Cook v. Seattle Stevedore
Co., 21 BRBS 4 (1988); Bethard v. Sun Shipbuilding & Dry Dock Co., 12
BRBS 691 (1980).

     We agree with claimant that the administrative law judge's finding that
claimant did not sustain a loss of wage-earning capacity due to his work injury
cannot be affirmed as he has not fully analyzed this issue as required by the Act. 
The administrative law judge initially erred by stating that where employer has
provided claimant with suitable, non-sheltered alternative employment, an inquiry
into claimant's wage-earning capacity on the open market is irrelevant. See
Penrod Drilling Co.  v.  Johnson, 905 F.2d 84, 23 BRBS 108 (CRT)(5th Cir. 
1990).  Rather, the administrative law judge must first determine whether
claimant's actual post-injury wages fairly and reasonably represent his post-injury
wage-earning capacity, and in order to do so, the administrative law judge must
expressly consider the relevant factors noted supra, including the specific
effects on his earning capacity raised by claimant.  Moreover, the administrative
law judge erred in failing to neutralize the effects of inflation by utilizing
claimant's 1996 earnings as his post-injury  wage-earning capacity.  If he
determines claimant's earnings as a service writer fairly and reasonably represent
his wage-earning capacity, he must adjust those earnings back to the wage level
paid at the time of claimant's November 12, 1985, work injury. See,
e.g., Richardson, 23 BRBS at 330-331.  Accordingly, we vacate the
administrative law judge's finding that claimant did not sustain a loss of wage-earning capacity, and we remand for the administrative law judge to apply the
applicable law to the relevant evidence and redetermine claimant's post-injury
wage-earning capacity, which he must then adjust for inflation and compare  with
claimant's pre-injury average weekly wage.

     Claimant next argues that the administrative law judge erred by failing to
order employer to pay for the exercise program prescribed by Dr. Saiter.  In
declining to find employer liable for this program, the administrative law judge
found no evidence that a  qualified physician rendered an opinion that this
treatment is reasonable and necessary, and he noted that claimant failed to address
this issue in his post-hearing brief.

     Section 7(a) of the Act, 33 U.S.C. §907(a), states that "[t]he employer
shall furnish such medical, surgical and other attendance or treatment...medicine,
crutches, and apparatus, for such period as the nature of the injury or the process
of recovery may require." See Ballesteros v. Willamette W. Corp., 20
BRBS 184 (1988).  In order for a medical expense to be awarded, it must be
reasonable and necessary for the treatment of the injury at issue. See Pardee
v. Army & Air Force Exchange Service, 13 BRBS 1130 (1981); 20 C.F.R.
§702.402.  Whether a particular medical expense is necessary is a factual
issue within the administrative law judge's authority to resolve. See Wheeler
v. Interocean Stevedoring, Inc., 21 BRBS 33 (1988).

     In the instant case, while claimant did not address this issue in his post-hearing brief, he did raise the issue in his pre-hearing statement and at the
formal hearing, see Tr at 10; accordingly, the issue was properly raised
before the administrative law judge. See 20 C.F.R. §702.338.  Moreover,
contrary to the administrative law judge's decision, there is evidence that
claimant requested the treatment at Pro-Health and it was prescribed by Dr. Saiter,
who is Board-certified in orthopedics and claimant's treating physician. See
Tr. at 54-55; CX 2 at 1-2.  Accordingly, we vacate the administrative law judge's
denial of medical benefits, and we remand for the administrative law judge to
address the evidence relevant to this issue.

     Accordingly, the administrative law judge's Decision and Order-Denying
Benefits is vacated, and the case is remanded for further consideration consistent
with this opinion.

     SO ORDERED.


                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge


                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge


                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

NOTE: This is an UNPUBLISHED LHCA Document.

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